After the State charged Ofte with OWI 2nd, he moved for suppression because Deputy Paulson had interrogated him in the back of a locked squad car without a Miranda warning. The circuit court suppressed all evidence from that point on–Ofte’s statement and the results of his FSTs and breathalyzer test. The State appealed arguing that Ofte was not in custody for 5th Amendment purposes. The court of appeals disagrees.
Two deputies responded to a report that a truck was parked on the wrong side of a highway and that the man inside was slumped and non-responsive. When the deputies arrived, Ofte was in the back of an ambulance showing signs of intoxication. They began to question him there.
After Ofte was cleared to leave the ambulance, Paulson told him that he wanted to “run him through field sobriety tests” and that he “had to walk up towards my squad car,” which was on a hill. Ofte was unsteady. Paulson testified that he “placed” Ofte in the back of the squad car, questioned him, then drove him an unspecified distance to a flat spot to run FSTs. The second deputy told Ofte to submit to a breathalyzer test.
On appeal, the State didn’t deny that Paulson failed to give Miranda warnings or that Paulson’s questioning in the squad car qualified as “interrogation” under the 5th Amendment. Nobody offered the bodycam video into evidence, so it wasn’t part of the appellate record.
The State’s sole argument was that Ofte was not in 5th Amendment custody. Paulson thus had no obligation to give a Miranda warning, per State v. Gruen, 218 Wis. 2d 581, 597-598, 582 N.W.2d 728 (Ct. App. 1998). Gruen held that a defendant was not in custody for 5th Amendment purposes when police stopped him near the scene of a traffic accident, frisked him, placed him in a police van for 10-15 minutes without handcuffs and asked “three short, general, common-sense investigatory questions.”
The court of appeals held that Ofte was in Miranda custody during the squad car interrogation based partly on Gruen but mostly only: State v. Halverson, 2021 WI 7, ¶¶13-14, 16-17, 395 Wis. 2d 385, 953 N.W.2d 847, State v. Dobbs, 2020 WI 64, 392 Wis. 2d 505, 945 N.W.2d 609; State v. Bartelt, 2018 WI 16, ¶31, 379 Wis. 2d 588, 906 N.W.2d 684; and California v. Beheler, 463 U.S. 1121, 1125 (1983). Neither party cited Halverson.
These cases impose a two-step test for Miranda custody. First, a court considers whether, under a totality of the circumstances, the defendant would have felt free to terminate the interrogation and leave. Second, the court considers whether the interrogation environment was as coercive as station house questioning.
Regarding the first step, court of appeals acknowledged that Ofte was never frisked or handcuffed. Neither officer displayed a weapon. And the length of the interrogation was unclear. Still, the court held that no reasonable person in Ofte’s position would have felt free to leave. Two officers walked him up a hill to the squad care, “placed” him inside, and impeded his ability to exit. They never told him he was free to leave. Their questioning was confrontational. Then they drove him to a new location for tests signaling that this was no ordinary traffic stop. Opinion, ¶¶29-39.
As for the second step, the court noted that the State failed to present a developed argument on the subject. It held that the officers created an unfamiliar, intimidating, accusatory setting–much like the police station–when they interrogated him in the squad car and impeded his ability to leave. Opinion, ¶42.
At the outset of this opinion, the court of appeals noted Ofte’s argument that Paulson intentionally violated Miranda, so suppression was warranted under State v. Knapp, 2005 WI 127, ¶2, 285 Wis. 2d 86, 700 N.W.2d 899. The court said that because it found a Miranda violation it did not have to decide whether the violation was intentional Opinion, ¶3 n.3